Wednesday, July 1, 2015

President Barack Obama is aiming to change the conversation around his health care law from talk about undoing it to talk of how to make it better.

Obama was headed to the Nashville, Tennessee-area on Wednesday to discuss ways to improve the Affordable Care Act, including by extending Medicaid coverage to more low-income people. Tennessee is among about 20 states that have rejected Obama's offer of billions of dollars to help pay to expand the federal-state health care program for the poor.

Most of the states are led by Republican governors and Obama has blamed political motivation for their actions.

Obama wants to change the conversation after the U.S. Supreme Court last week turned away a major challenge that would have endangered the law along with health insurance for millions of Americans. In a 6-3 decision, the justices upheld federal financial aid to millions of low- and middle-income Americans to help pay for insurance premiums regardless of where they live.

Obama declared after the ruling that the law is "here to stay." He cited progress under its provisions, but said "we've still got work to do to make health care in America even better," including by helping consumers make informed choices about their medical care, increasing the use of preventive care, improving the quality of hospital care and reducing costs.

Just over 80 percent of people under age 65 had health insurance when Obama enacted the law in 2010. Since then, the share has risen to about 90 percent.

The administration would like to boost health care enrollment even further by helping the remaining uninsured get coverage. But achieving the goal largely depends on the roughly 20 states, including some heavily populated ones like Florida and Texas, which have refused the significant financial incentive to expand Medicaid.

Obama has said in recent days that convincing these holdout governors will be important.

"I'm going to work as hard as I can to convince more governors and state legislatures to take advantage of the law, put politics aside, and expand Medicaid and cover their citizens," he said last week. "We've still got states out there that, for political reasons, are not covering millions of people that they could be covering, despite the fact that the federal government is picking up the tab."

Next year is the final year that Washington will offer full federal funding to states to pay for the expansion. After 2016, the federal share will begin to gradually decline, and that will leave states with expanded Medicaid programs responsible for picking up more of the costs.

Republicans lawmakers said the Supreme Court decision doesn't change the fact that the law is flawed and should be repealed. No Republicans voted for the law in 2010.

"We will continue our efforts to repeal the law and replace it," House Speaker John Boehner, R-Ohio, said last week.

Tennessee Gov. Bill Haslam, a Republican, supports extending Medicaid coverage to 280,000 low-income state residents, but a proposal he put forward failed during a special session of the Republican-controlled Legislature earlier this year. The proposal was revived during the subsequent regular session, but failed to clear a state Senate committee.

Tennessee U.S. Rep. Jim Cooper, a Democrat, is among state officials calling on state lawmakers to reconsider Haslam's plan in light of the U.S. Supreme Court ruling.

A Florida judge is blocking a new state law that requires women to wait 24 hours before getting an abortion.

Chief circuit judge Charles Francis on Tuesday blocked the law one day before it was scheduled to take effect.

The American Civil Liberties Union of Florida and the Center for Reproductive Rights sued after the Republican governor, Rick Scott, signed it into law. They argued that the law violates the right to privacy guaranteed in the state constitution by interfering with the right of women to undergo the procedure.

"We are very pleased that the court saw this law for what it is: an unconstitutional attack on the right of Florida women to make their own choices about their healthcare, including abortion," the ACLU of Florida legal director, Nancy Abudu, said in a written statement.

Florida was scheduled to become the 27th state to have a mandatory waiting period and backers of the measure had predicted the law would withstand a legal challenge.

Abortion was the subject of emotional debate during the legislature’s regular session that ended on 1 May. Democrats complained the bill was simply an effort to put up roadblocks to restrict women’s rights to an abortion while Republicans said women should have to wait before making such a major decision.

But in his ruling Francis wrote that state officials had given no evidence to show why the new law is not a burden on privacy rights. He said it did not matter that other states have similar laws since Florida’s right of privacy is broader.

Monday, June 1, 2015

Decision from Senate majority leader to vote on NSA reform appears to clear way for passage of bill that would curb bulk collection of Americans’ phone records.

The Senate majority leader agreed on Tuesday to hold a vote that could deliver the first rollback of US government surveillance on its own citizens in at least a generation, avoiding what appeared to be a looming war in the conservative congressional leadership over landmark -- if still limited -- reform as a result of the Edward Snowden disclosures.

The Senate will vote this week on the USA Freedom Act, which passed the House of Representatives last week with a vote of 338-88, majority leader Mitch McConnell announced on Tuesday.

The decision represented a rare congressional defeat for US security agencies and a pitched retreat by McConnell and his Senate Republican colleagues, who had preferred to extend existing surveillance law. McConnell faced a 1 June deadline for the expiration of key provisions of the Patriot Act, which the government has used since the George W Bush administration to justify the dragnet collection of domestic phone records.

Any extension of the Patriot Act undertaken by McConnell would have required support in the House to take effect -- support that House majority leader Kevin McCarthy declined to extend on Monday.

McConnell's decision could clear the way for the passage of the USA Freedom Act, which would break up the so-called "haystack" of domestic phone records out of the possession of intelligence agencies and into the possession of telecommunications companies, and change the process for querying the data, among other measures.

But the majority leader cast doubt over whether there would be enough votes within his caucus to advance the bill, since the majority of Senate Republicans still preferred a clean renewal of the Patriot Act.

While passage of the first drawdown of government surveillance authority in decades was not guaranteed, the White House said Barack Obama would sign the legislation.

Under the reform, however, the National Security Agency would still be able to acquire thousands of call records based on a single court order.

Limitations on wholesale reform

Many privacy groups lament that the legislation McConnell has now agreed to move to the Senate floor provides an insufficient response to two years' worth of outrage over widespread US surveillance. The US government has long held up section 215 of the Patriot Act to justify the dragnet collection of American phone records, but the first program was first revealed last June by the Guardian based on documents obtained from Snowden.

The bipartisan architects of the USA Freedom Act in the House of Representatives have for months predicted boxing surveillance advocates into the untenable position in which McConnell found himself: under the pressure of a wholesale loss of a Patriot Act provision beloved by the FBI but without the votes to reauthorize the provision unless they sacrificed the NSA's daily collection of millions of US phone records.

Since the House voted overwhelmingly last week to pass the USA Freedom Act, opposition mounted to McConnell's preferred alternative of an unabridged reauthorization of what is known as the Patriot Act's Section 215. McConnell lacked the votes for a two-month extension of Section 215 in the Senate and the House considered it a nonstarter. New polls showed broad and deep bipartisan antipathy to broad government surveillance.

Yet the USA Freedom Act only bars the use of section 215 for collecting US phone data in bulk. Other domestic surveillance authorities, including the DEA's recently disclosed bulk phone records collection, would remain untouched, as would the NSA and FBI's ability to search without a warrant through its bulk of internet content and metadata for Americans' communications.

Several privacy groups and civil libertarians have warned that their congressional allies are selling the retention of section 215 too cheaply.

The White House reiterated its support for the House-passed bill on Tuesday, saying Barack Obama would sign it into law if it came to his desk.

"It was obviously the product of important, difficult, bipartisan work to reach a compromise that would ensure that our national security professionals would continue to have the tools they need to keep us safe, while ensuring that we are going to greater lengths to protect the privacy and civil liberties of the American people," Josh Earnest, the White House press secretary, told reporters at his daily press briefing.

Pointing to the legislation's overwhelming passage in the House, Earnest added it was the "only path" for the Senate to prevent a lapse in the authorities granted by the Patriot Act that would in turn pose a risk to national security.

The future of spying -- and the presidency

The future of spying under the Patriot Act was already threatened, whatever Congress did next. A circuit court ruled earlier this month that Section 215 did not, in fact, permit the dragnet collections of US phone records. That followed a January 2014 finding by the Obama-appointed watchdogs at the Privacy and Civil Liberties Oversight Board that bulk phone records collection had not stopped terrorist attacks and had "limited value" in combatting terrorism more broadly.

McConnell's decision went against vocal warnings in recent weeks from presidential candidates and prospective candidates that surveillance programs should be left unmolested.

"All these fears are exaggerated and ridiculous," New Jersey governor Chris Christie said on Monday of concerns about privacy abuses. "There is not a single documented case of abuse of this program," Florida Senator Marco Rubio wrote in USA Today last week. "The debate has gotten off track," former Florida governor Jeb Bush said earlier this year.

An exception was Senator Rand Paul, who at a campaign stop in Philadelphia on Monday said he would "do everything possible" to curtail surveillance.

"Here in front of Independence Hall, I call on the president to obey the law," said Paul. "They have the votes inside the Beltway. But we have the votes outside the Beltway, and we'll have that fight."

An open question under the USA Freedom Act is whether energetic lawyers for the intelligence agencies will accept the loss of the bulk collection program or seek to cobble together a retention through a patchwork of different legal authorities.

Such lawyerdom is how the NSA in 2006 transformed section 215's allowance to collect data "relevant" to an ongoing investigation into the ongoing bulk collection of US phone data -- a construction that a federal appeals court rejected as illegal earlier this month.

Over the past month, intelligence lawyers have insisted they will not launch such a gambit.

"It is not going to happen," Robert Litt, the attorney for Director of National Intelligence James Clapper, told a panel discussion in Washington on 8 May.

"It would be a brave intelligence official who would say we're going to go ahead and recreate a bulk collection program," Litt said.

Civil liberties attorneys are not as sanguine.

"No matter how high and thick the wall we build," said Jameel Jaffer of the American Civil Liberties Union, "NSA is going to spend enormous resources trying to get over the wall, under the wall, around the wall or through the wall."

A U.S. judge on Thursday blasted the Obama administration's motion to dismiss a lawsuit brought by Republicans in the U.S. House of Representatives over the implementation of the Democratic president's signature healthcare law.

Republicans in the House filed a lawsuit in November, saying administration officials unlawfully bypassed Congress.

At issue are executive changes authorizing Treasury payments to healthcare insurers without the funding being agreed by Congress and delaying implementation of the law's employer mandate, which required employers with more than 50 employees to provide healthcare coverage.

U.S. District Judge Rosemary Collyer, appointed by Obama's predecessor, Republican George W. Bush, repeatedly interrupted U.S. Justice Department lawyer Joel McElvain during the hearing in the U.S. District Court for the District of Columbia.

Justice Department lawyers argue that the House lacks standing to sue, citing a section of U.S. law that means the House would have to prove it has been directly harmed.

"So it is your position that if the House of Representatives affirmatively voted not to fund something ... then that vote can be ignored by the administration, because after all, no one can sue them?" she asked.

McElvain argued that the merits of the case were not being discussed at the hearing, and that any perceived injury was "abstract."

"I'm not asking you to give me your brief. I want you to explain ... why it's not an insult to the Constitution?" Collyer said.

McElvain argued that the House could pass new legislation if it disagreed with the administration's changes, which he said were legal under "pre-existing permanent appropriation."

At another point, Collyer admonished McElvain: "You can't just shake your head and not deal with the question."

The lawsuit is one of a flurry filed against the Obama administration in the past few months challenging executive actions on healthcare and immigration as Republicans seek to amp up pressure on the president.

Jonathan Turley, a lawyer for the House Republicans, said the lawsuit should go forward to show the power of the purse "should not be decorative."

The judge, while appearing sympathetic to the Republicans' decision to bring the lawsuit, said she had not yet decided on the standing issue before her.

The case is United States House of Representatives v. Burwell et al, U.S. District Court for the District of Columbia, No 14-1967

Wednesday, May 6, 2015

San Jose's attempts to lure the A's to the South Bay, which were already on life support, have been dealt a potentially deadly blow -- thanks to a court ruling that the city should have sought voter approval for setting aside a piece of downtown real estate for a new ballpark.

"The city is and has been in violation of (the law) for several years and it does not appear it will comply with the terms in the foreseeable future," said Judge Joseph Huber of Santa Clara County Superior Court in finding for opponents of the deal.

The judge backed a lawsuit to block the city's potential sale of the land to the A's. The plaintiff was Stand for San Jose -- a citizens group that has close ties to the Giants, who claim the South Bay as their territory and have no desire to see the A's move in.

The group's attorney, Ron Van Buskirk, called the judge's ruling a "significant victory."

San Jose officials say they will appeal last month's decision, which some say could jeopardize the city's legal standing to challenge Major League Baseball's antitrust exemption before the U.S. Supreme Court this fall in a last-ditch bid to clear a path for the A's to move south.

"The option agreement (allowing the city to sell the land to the A's) has no relevance on whether the city of San Jose has standing to sue," Mayor Sam Liccardo said Tuesday.

The A's have spent the past decade trying to get Major League Baseball to clear the way for them to move to San Jose but have been rebuffed every step of the way -- largely because of opposition from the Giants.

In 2011, with the loss of its Redevelopment Agency, San Jose formed a joint powers authority to take possession of 5 acres known as the Diridon Property, then entered into an option agreement for the A's to buy the land for $25 million as a prospective home of their new ballpark.

Stand for San Jose sued, saying the deal violated a 1988 voter-approved initiative that requires a city vote before any tax dollars are spent in San Jose to build a stadium or sports arena.

The city's option agreement with the A's was extended just last year -- but in his ruling, Huber ordered the city to withdraw it until there's a vote of the people.

"The judge got it wrong," said San Jose City Attorney Richard Doyle. He said the city had always intended to seek voter approval for the ballpark deal, and had held off only at the request of Major League Baseball.

"Either way, San Jose has been damaged by Major League Baseball's refusal to allow us to compete with other cities," Liccardo said in a statement. "Ultimately, the final issue will still be decided by the U.S. Supreme Court, which is what we've sought all along."

Soccer spring: The parents and players in the Santa Clara Youth Soccer League once again showed their political and media smarts this past weekend in a made-for-TV demonstration calling out the San Francisco 49ers over their outdoor smoking section outside Levi's Stadium, adjacent to the soccer fields.

Before the youngsters marched onto the fields, league officials sent an e-mail to parents and supporters detailing their plan to "distribute dust masks to players and spectators and gas masks to coaches and referees."

"Get the players to hold homemade signs protesting the smoking. ... Then stand united holding the signs for 30 seconds so the media can capture on video and with pics," said the e-mail from youth soccer rep Burt Field.

There was also an outline of talking points and a call for volunteers to staff the Twitter and Facebook feeds.

"I call it the 'soccer revolution,'" said Santa Clara City Councilwoman Lisa Gillmor.

It was the second time in as many weeks that the pint-sized soccer players had taken on the Niners. The first round was a beat-back of a deal at the City Council to lease the soccer league's fields to the Niners for development.

"We aren't going to bring the circus out every time," Field said. "But we want to let them know that we can bring out the circus, if that is what it takes."

By the way, the Niners had already posted no-smoking signs.

Real deal: Some folks in high places took exception to our account Sunday that a group led by UCSF Foundation chairman Bill Oberndorf had made a serious competing bid for the Warriors' arena property at Mission Bay in hopes of land-banking it for future expansion of the medical center.

One UCSF donor privately told us Salesforce was open to a sale but that Oberndorf's group never came up with the $150 million or so for the deal or made a formal offer.

Our sources are sticking to their story, saying Oberndorf had hoped to help finance the purchase of the Salesforce land with UCSF Foundation money and that the plan had been openly discussed among foundation board members.

Not in Kansas: The San Francisco Drug Users Union -- yes, Toto, there is one -- is tossing a benefit for its Tenderloin drop-in center and needle exchange program Saturday at the Palace Theater in Oakland.

Featured acts include Leftover Crack, Broke Fiends and the Shlurs -- plus "live action demonstrations" on how to reverse a drug overdose.

Part of the money will go toward the union's goal of setting up the first supervised injection facility in the U.S.

"Due to the radical nature of our program, a lot of our work is extremely controversial and cannot be used for grant solicitation," director Holly Bradford said in the release announcing the benefit.

Marijuana enthusiasts and law enforcement don't agree on much. But there is one point both concede: Louisiana's marijuana laws are exceptionally strict.

Caught with a small amount of pot? Face up to 20 years in prison on your third arrest.

And even though a medical marijuana law has been on the books since 1991, it's essentially meaningless because the state hasn't developed guidelines to cultivate and distribute the drug.

That could soon change. The state's powerful law enforcement associations, which have stymied efforts to change marijuana laws in the past, are shifting their stance -- even if only a little.

For the first time, the Louisiana Sheriffs' Association has removed its opposition to a bill that would make medical marijuana available to sufferers of cancer, glaucoma and a severe form of cerebral palsy, though smoking the drug would still be illegal. That measure, sponsored by Sen. Fred Mills, R-Parks, won passage Monday from the Senate and heads next to the House for debate.

The Louisiana District Attorney Association opposes medical marijuana, but it does support decreased sentences for people with multiple marijuana possession convictions -- a measure by Rep. Austin Badon, D-New Orleans, that is scheduled for consideration Wednesday in the House criminal justice committee.

State Sen. J.P. Morrell said the de facto response used to be: "We are really tough on marijuana -- and it is working."

"Now we are having conversations about marijuana that were not even possible five years ago," the New Orleans Democrat said.

Discussions about reducing sentences in Louisiana follow the court case of Bernard W. Noble, a New Orleans father of seven, who was sentenced to over 13 years after he was arrested on his way to work for having two joints. Noble's court battle came to an end last year after losing his last appeal.

Former New Orleans Saints player Darren Sharper was "in possession of very potent and powerful narcotics used to perform sexual assaults against women and gets nine years in federal prison, whereas you can have a guy with two cigarettes for his own use and he gets 13 years?" said Badon, who is proposing to reduce the top sentence for a repeat marijuana possession to eight years.

Morrell is sponsoring a bill that would reduce sentences more drastically, decriminalizing a first offense and capping jail time for repeat offenders at 30 days.

Pete Adams, executive director of the District Attorney Association, described Morrell's bill as going "radically far," though he indicated he's open to limited negotiation.

Cities and states across the U.S. have increasingly reconsidered get-tough-on-drug laws. Eighteen states including New York, Nevada and Mississippi have decriminalized marijuana possession, and recreational use is legal in Washington and Colorado.

At the same time, polls show Louisiana attitudes are changing toward marijuana.

Support for legalizing medical marijuana had reached 60 percent, a public opinion survey by LSU's Public Policy Research Lab found earlier this year. And 67 percent said people convicted of possessing small amounts of marijuana shouldn't serve jail time.

The cash-strapped state -- where one in 14 arrests is for marijuana possession -- could also benefit, saving an estimated $23 million a year by reducing felony marijuana possession to a misdemeanor, according to Louisianans for Responsible Reform.

Still, pot proponents shouldn't get their hopes up too high.

Measures to decriminalize marijuana, or mimic California's permissive medical marijuana law, appear to be nonstarters -- including a bill currently before the Legislature calling for a statewide election to determine whether pot should be legal.

Asked whether law enforcement was softening its stance on marijuana laws, Michael Ranatza, head of the sheriffs' association, said he doesn't see a shift.

Still, the advocacy of a colleague's terminally-ill daughter led Ranatza to a recent change of heart regarding medical marijuana, and he passionately pleaded for lawmakers to approve Mills' medical marijuana bill.

"This is about medicine," Ranatza said. "This has nothing to do with a shift of position or our belief."

Thursday, April 2, 2015

The Christian Church (Disciples of Christ) has followed through with a threat to relocate its 2017 convention from Indianapolis due to concerns about the "religious freedom" law and lack of anti-discrimination protections for some citizens.

The church's board on Tuesday voted unanimously to seek another venue for the convention. Church officials said the law sent a message that some of its attendees might not be welcome in certain Indiana businesses.

"As a Christian church, we affirm and support religious freedom," General Minister and President Sharon Watkins said in a prepared statement. "It is, in fact, a core principle for the Christian Church (Disciples of Christ). We are also strongly committed to an inclusive community -- just as Jesus welcomed all to the table."

The timing comes as the business community and state leaders are negotiating the addition of anti-discrimination language to the law.

The current measure prohibits state or local governments from substantially burdening a person's ability to exercise their religion -- unless the government can show that it has a compelling interest and that the action is the least-restrictive means of achieving it. It takes effect July 1.

Critics fear it could allow business owners to deny services to gays and lesbians for religious reasons.

Spokeswoman Cherilyn Williams told The Indianapolis Star that church officials were unsure a legislative fix currently being considered would be adequate to address all of their concerns. The state's lack of anti-discrimination protections for sexual orientation and sexual identity, in particular soured them on Indiana.

"We're not sure the fix will be adequate to address all of our concerns," Williams said.

She said there were no plans to relocate the church headquarters from Indianapolis. Church officials, she said, wanted to make a statement by moving the convention.

"We are a church that values diversity and values freedom of religion," Williams said. "For us, ... (that) cannot impede the freedom of others."

She said the church had signed a letter of intent with Visit Indy to hold the convention in Indianapolis in 2017. It's not clear whether breaking that agreement will carry any penalties.

Visit Indy has been trying to convince the church to allow the convention to stay in Indianapolis amid concerns about the law, said Chris Gahl, spokesman for the tourism group.

"We've not yet received a notice of cancellation from the Christian Church (Disciples of Christ), nor are we aware of any hotel cancellations for their 2017 annual convention, so we continue to work to keep them in Indy," Gahl said Wednesday.

Ten conventions and 700 people already have called with concerns about the "religious freedom" legislation, he added.

On March 25, Disciples of Christ officials sent a letter to Gov. Mike Pence to ask him to consider vetoing the "religious freedom" bill, saying it sent the wrong signal for Indiana.

Pence signed the bill Thursday.

Indianapolis isn't the only city struggling to hang onto conventions in the wake of the new law. In Fort Wayne, 2WPTA-TV has reported that six conventions with a combined economic impact of $1.2 million, are reconsidering coming there due to concerns over discrimination in the "religious freedom" law.

Hutchinson, a Republican, has said he will sign the bill into law. Critics say the law, similar to the one enacted by the Indiana Legislature and signed by Gov. Mike Pence, would allow for discrimination against gays and lesbians.

The Bentonville, Arkansas-based company says the legislation "threatens to undermine" the state's inclusive spirit and does not reflect the company's values.

"Every day in our stores, we see firsthand the benefits diversity and inclusion have on our associates, customers and communities we serve," Wal-Mart CEO Doug McMillan said in a statement posted to Twitter. "It all starts with our core basic belief of respect for the individual. Today's passage of HB1228 threatens to undermine the spirit of inclusion present throughout the state of Arkansas and does not reflect the values we proudly uphold."

Others objecting to Arkansas' House Bill 1228 include the Little Rock Regional Chamber of Commerce and the Little Rock Conventions and Visitors Bureau, according to the Arkansas Democrat-Gazette.

Numerous businesses and prominent figures have also expressed concern with Indiana's religious freedom law, including the National Football League, NASCAR, National Basketball Association, Women's National Basketball Association and the NCAA, which hosts the men's Final Four at Indianapolis' Lucas Oil Stadium on Saturday.

Pence said Tuesday that he expects clarifications to the law on his desk by the end of the week. "I've come to the conclusion that it would be helpful to move legislation this week that makes it clear that this law does not give businesses the right to discriminate against anyone," he said.

Unlike the Indiana law, the Arkansas bill's sponsors rejected exemptions to the law that would have explicitly banned discrimination against gays and lesbians.

Monday, March 9, 2015

Law firm failures have become spectacles. Non-lawyers who witness what was once a rare event might take pleasure, because they have never held lawyers in high esteem to begin with. Lawyers at rivals down the street may look on anxiously, concerned about what they might not have read carefully in their own partnership agreement.

We all measure the world by our own experiences. A generation -- twenty years -- passed between the time I stepped foot in San Francisco to interview for a summer associate job at a major law firm, and when I returned to the city by the bay to head a law school.

Between 1990 and 2010, the economic changes that have been astonishing to members of the bar likely have not been all that surprising to everyone else. After all, that time period encompasses the dot-com boom and bust, a phenomenon an order of magnitude (at least) greater than any disruption to established professional service firms.

Chancellor & Dean Frank H. Wu

Nonetheless, I had not expected to find what I did upon my return. I would estimate that fewer than one third of the brand name, top drawer, old shoe partnerships, however defined, were still practicing under the same name and with the same structure. Most of them had vanished, some in major stories reported by the mainstream media; others had reconfigured with varying voluntariness, losing a few colleagues as they did what they had to do.

Meanwhile, a market that had only one major "out of town" firm came to have branch offices of every national outfit. In an entrepreneurial culture where fortunes can be made on an idea that appears to generate negative return on investment, even lawyers have had to adapt. A number of firms subject to dire predictions turned out to be fine.

I have a hypothesis about these dynamics. Law firms fail for many reasons. Among them is not one that might be expected. Very few, if any, of the law firms that have "failed" has foundered because the people employed there were lousy lawyers.

The causes of these debacles are varied: too much debt or space, not enough revenues or collegiality (the latter merely referring to how to divide the former), geographic expansion for it's own sake, promises to lateral recruits that cannot be sustained according to any rational calculations, and so on.

What is more remarkable, however, than what produces the joyless outcomes is what does not. Bad lawyering is not usually the cause. The lawyers at law firms no longer with us generally were capable. As lawyers, they may well have been superlative. Some were "lawyer's lawyers," those admired by their peers.

The busted law firms boasted people with excellent pedigrees. They represented clients who were the envy of their peers. They fought the bet-the-company cases and handled the sell-the-company deals.

Nobody ever says, "Oh, well, they were bad lawyers at XYZ law firm."

They say the opposite, "How could that have happened? They were the best."

And that makes my argument. Smart people overestimate the importance of being a smart person. To be the best lawyer, or the best collection of lawyers, is not enough; it doesn't even guarantee you stay in the game.

It is necessary to be great businesspeople, too. Or to affiliate with great businesspeople, which means recognizing that the technical skills needed to be a great lawyer might (or might not) correlate with the other skills needed to thrive.

These observations are not even altogether original. When I was starting out in practice, more than a few lawyers disregarded or even disdained the business aspects of the profession. Now, even those who lament the transformation of their occupation grant that it belongs within the stream of commerce.

Talent is the means to an end. It isn't the end.

By Frank H. Wu, Chancellor & Dean of UC Hastings College of the Law, Twitter: www.twitter.com/frankhwu

Idaho law students push to repeal copyright on state code, put laws in public domain.

Idaho law students Jordan Stott and Randi Schumacher have spent nearly three years poring over the nuances of many laws. Now they're trying to write their own.

An Idaho House panel introduced a bill -- drafted by Stott and Schumacher -- that would remove Idaho's copyright on its state laws and add them to the public domain.

Idaho House panel

The University of Idaho law students argue that if citizens need to follow Idaho's laws, then they should be free to access and reproduce it.

And even though the unofficial text of the statutes is available online, the students say that it's more difficult to access the commentary that accompanies the code.

"You're getting the words of the code, but you're not getting the annotations and notes that are so helpful for understanding," said Stott, who has previously worked with the U.S. Patent and Trademark Office.

Democratic Rep. Ilana Rubel from Boise says she's not sure if the bill will move forward because of pushback from the Idaho Code Commission.

Dan Bowen, who represents the Commission, says the public has ample access to the official code in county law libraries across the state.

People must otherwise buy access to an online version of the code, the students say, or purchase the printed version, which costs more than $500.

"I'm a little concerned about that because we have a big state, and a lot of people can't get to a law library," said Democratic Rep. Ilana Rubel from Boise. "I think it does impair the access somewhat."

After Rubel recognized the concern, she asked the students to research what the policy should be -- and then write the bill itself.

But Rep. Richard Wills, who chairs the House Judiciary, Rules and Administration Committee says he's still uncertain whether he will give the bill a full hearing.

According to the National Conference of State Legislatures, roughly 30 state governments surveyed -- including Idaho-- hold a copyright on their codes.

Idaho has held the copyright on its official law since 1949. The state is currently under contract with Matthew Bender and Company, Inc.

The business is tasked with organizing and maintaining the code, as well as updating its accompanying annotations. Without the financial incentive, Bowen says, there's no reason for Bender to keep updating the notes -- which Bowen says the state doesn't have the capacity to handle.

"I'm sure there was some sort of a reason whenever they originally did this, but I wouldn't know," said Bowen. "That's the way it has been set up, and that's the way it works."

The contract shows that the state pays more than $400,000 per year for 1,025 copies of the full annotated code.

But the students say that the copyright's repeal would allow people to come up with new ways to access the laws.

"It's not enjoyable to read and not easy to search," said Schumacher, who plans to practice law in Boise after her graduation this spring. "If people were able to use the code to make apps or a website, I think that would be good innovation."

Rubel says the students plan to meet with the Code Commission soon in an effort to hammer out a compromise.

Monday, February 9, 2015

From the first day, it's clear that law professor Jon Hanson's new Systemic Justice class at Harvard Law School is going to be different from most classes at the school. Hanson, lanky, bespectacled, and affable, cracks jokes as he paces the room. He refers to the class of 50-odd students as a community; he even asks students to brainstorm a name for the group. But behind the informality is a serious purpose: Hanson is out to change the way law is taught.

Jon Hanson and Jacob Lipton

"None of us really knows what ‘systemic justice' is -- yet you're all here," he points out. The new elective class, which is being taught for the first time in this spring term, will ask students to examine common causes of injustice in history and ways to use law and activism to even the field.

Traditionally, students come to law school to master existing laws and how to apply them. But surveys given to the students in this class beforehand show that most are worried about big unsolved social problems -- income inequality, climate change, racial bias in policing -- and believe that law is part of the problem. The goal of Hanson's class is to introduce a new approach.

The class is part of a new Systemic Justice Project at Harvard, led by Hanson and recent law school graduate Jacob Lipton. They're also leading a course called the Justice Lab, a kind of think tank that will ask students to analyze systemic problems in society and propose legal solutions. Both classes go beyond legal doctrine to show how history, psychology, and economics explain the causes of injustice. A conference in April will bring students and experts together to discuss their findings.

Harvard's project is an unusual one, but it arises out of a growing recognition that law students need to be trained to be problem-solvers and policy makers. As Hanson tells his students that first day, "If you're thinking about systemic justice, you need to be thinking about legal education." He believes that this education should be less about learning the status quo and more about how the next generation of lawyers can change it.

There's widespread acknowledgment that justice is often meted out unfairly; decades of scholarship have shown how social biases based on race, gender, corporate interests, or ideology find their way into written laws. Nevertheless, Hanson says, law school classes don't always give students the tools to counteract injustices. "My students have expressed increasing amounts of frustration with the fact that many of our biggest problems are not being addressed by the legal system," he says. Lipton was one of those students. After graduating in 2014, he turned down a fellowship in Washington, D.C., to stay at Harvard and help Hanson see the new project through.

One of their targets is the case method of legal education, which has been the dominant form of teaching law in America since it was introduced at Harvard Law School by Christopher Columbus Langdell after he became its dean in 1870. Rather than lecturing his students, Langdell asked them to examine judicial cases of the past. Then, through a process of Socratic questioning, he would challenge students to explain their knowledge and interpretation of a case, allowing them to glean the deeper principles of the law, much like a scientist would examine evidence.

Though the case method has evolved since the 19th century, the primary text of most classes is still the casebook -- a set of legal decisions chosen for their ability to illustrate legal principles. Professors who embrace it say this approach forces students -- particularly first-year students with little legal training -- to think like lawyers. "Within a few weeks, I have reprogrammed their brains," says Bruce Mann, a law professor at Harvard who's known for his rapid-fire questions in class. "That doesn't mean that it is backward-looking. I'm really teaching them how to think." Mann, like many professors these days, tries to put cases in a larger historical and social context.

But Hanson and Lipton believe that the case method, while helpful in the hands of skilled teachers, puts too much emphasis on what the law already is, rather than what it should be. It tends to assume that decisions of the past are fair and appropriate. Instead, says Lipton, "we think that legal education should start with what the problems are in the world."

They also take issue with the way that law gets divided into categories -- tax law, criminal law, property law, torts, contracts -- each with different professors and different casebooks. Douglas Kysar, a law professor at Yale Law School and former student of Hanson's who has embraced his interdisciplinary approach to the law, says that these divisions can hinder tackling issues that existing laws don't address, and permits problems that run across disciplines to go unaddressed. "In each one of those fields, we often try to present the cases and materials as if they're an efficient and fair whole," he says. When something arises to challenge that picture, professors can pass the buck. For instance, in environmental law, one of Kysar's specialties, it's not always clear where the responsibility to fix a problem like pollution lies. "Everyone's pointing their fingers at other systems that are supposed to address a harm," he says. "There's no place where you're looking at the systems in a cross section."

Hanson and Lipton also argue that the law focuses too much on the actions and disputes of individuals -- and not even on an accurate vision of how individuals behave. "In many cases, the focus on the individual obscures what the actual problem is or what the solutions are," Lipton says. Hanson, meanwhile, has long argued that the vision of the individual that exists in law isn't well backed up by research. He directs the Project on Law and Mind Sciences at Harvard, which brings findings from social psychology and social cognition to bear on the law. The law generally treats people as rational actors making decisions based on their own knowledge and beliefs. In fact, Hanson says, research has shown that people are easily swayed by their circumstances. Through their academic writing and on a blog called The Situationist, Hanson and a growing group of like-minded scholars have argued that solving systemic problems means focusing more on forces that act on us, rather than assigning blame and punishment to individual actors.

A systemic approach to racial bias in policing, for instance, might look at psychological research on unconscious racial bias, police training techniques, and law enforcement policies in order to create a more just system, rather than on the actions of a specific officer. For the problem of rising student debt, another complex issue that students in the Justice Lab think tank are likely to tackle, it might look at federal loan systems that allow for-profit colleges to put students in debt without providing enough value in return. Another example is obesity and the food system; a systemic approach would look at ways that advertising, agricultural subsidies, supermarket zoning, and food service practices create an unhealthy system for consumers. "We want to examine the role that large commercial interests play in shaping laws," Hanson says. Solutions might involve class actions, new regulations, or institutional changes.

While systemic solutions aren't always politically popular -- think of when Michael Bloomberg tried to ban the sale of giant sodas in New York City to improve public health -- Hanson thinks that the idea of systemic justice resonates now in a way that it hasn't always in the past. "I think that is a reflection of the change in the mood in the country and in this generation of law students," he says.

Harvard's systemic justice initiative arises at a time when legal education is in an admitted state of crisis. Since 2010, law school enrollment in the United States has dropped to its lowest levels since 1987, according to the American Bar Association; fewer legal firms are hiring; and some law schools are in danger of closing altogether.

That's prompting many schools to find new ways of teaching. "Law schools are entering this era of trial and error," says William Henderson, a law professor at Indiana University who writes about legal education. Many are eschewing academic theory in favor of giving students practical skills and opportunities for hands-on learning. "Everyone in legal education sees that change is happening," Henderson says. Still, teaching via casebooks is a time-honored, widespread tradition, and there's a lot of inertia to overcome.

The Systemic Justice Project, though unique in some ways, is part of a larger effort introduce a policy focus into law school -- Stanford Law School, for instance, recently launched a Law and Policy Lab that asks students to find policy solutions to real-world problems. "Traditionally, law school education has been doctrinal," says Sergio Campos, a law professor at the University of Miami and visiting professor at Harvard. "You teach students what the law is and how to apply it." To be fair, that's exactly what many law students will be called on to do after graduation, working at law firms serving clients with specific cases and problems. They may contribute to significant case law in their field, but they won't be reshaping systems. But others will become judges, politicians, policy makers, organizational leaders, and presidents. Without a broader systems or policy perspective, those lawyers could be in trouble: "When you get to a position where you can change the law, you don't have a background on policy and what it should be," Campos says.

The debate about how much lawyers should think about the wider social implications of their work stretches back to a classic 1897 essay in the Harvard Law Review called "The Path of the Law." In it, the great Boston jurist and eventual Supreme Court Justice Oliver Wendell Holmes Jr., decried the "blackletter man" who learned the law as a closed system of knowledge based on past precedents, without reconsidering whether laws are working for the public good.

In that essay, says Harvard law professor David Rosenberg, Holmes was calling on lawyers and judges to engage with other areas of knowledge and to act as policy makers and social engineers. "Law is a bunch of social problems," he says. But while many agree with that idea in principle, he believes law schools often leave students unprepared to think broadly. "Over and over again in my many decades at Harvard, students have told me that my advice contradicts their instruction in other courses that making social policy arguments is a confession of weakness in your legal position, and should be done, if ever, only as a last resort," he says. "We're de-training them."

Rena Karefa-Johnson, a second-year student who's signed up for both the Systemic Justice class and the Justice Lab, admits that some students simply want to learn existing law and don't appreciate Hanson's approach. But it's been popular with students like her who are already active in fighting for social causes. "The law is inherently political," she says. "He does not allow his students to learn the law outside of its context."

In a dramatic show of defiance toward the federal judiciary, Chief Justice Roy S. Moore of the Alabama Supreme Court on Sunday night ordered the state's probate judges not to issue marriage licenses to gay couples on Monday, the day same-sex marriages were expected to begin here.

"Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent" with the Alabama Constitution or state law, the chief justice wrote in his order.

The order, coming just hours before the January decisions of United States District Court Judge Callie V. S. Granade were scheduled to take effect, was almost certainly going to thrust this state into legal turmoil. It was not immediately clear how the state's 68 probate judges, who, like Chief Justice Moore, are popularly elected, would respond to the order.

Since Judge Granade moved last month to declare Alabama's prohibitions against same-sex marriage unconstitutional, the chief justice has insisted that the probate judges were not required to abide by her decisions. But, in an interview on Wednesday, he said he thought he could do little more than guide the probate judges on how to respond.

"I think I've done what I can do: advise the state court probate judges that they're not bound by any ruling of the Federal District Court," he said.

But by Sunday night, the chief justice, faced with the prospect of many judges allowing same-sex marriages to move forward, acted, in part, "to ensure the orderly administration of justice within the State of Alabama."

Reached by telephone late Sunday night, Ben Cooper, chairman of the board of the gay rights group Equality Alabama, said that same-sex couples expected to be issued marriage licenses Monday morning.

"We are continuing to move forward tomorrow," Mr. Cooper said. "If we walk in and licenses are refused, if they do not comply with the federal order, then these probate judges could be personally liable," said Mr. Cooper, who added that he expected legal actions to be filed against the individual probate judges if they do not issue the licenses.

Some judges across the state had already signaled they would do nothing to aid gay couples and, in some instances, any couples. "Marriage licenses and ceremonies are no longer available at the Pike County Probate Office," the office said.

And Washington County Probate Judge Nick Williams released a "declaration in support of marriage" in which he said he would "only issue marriage licenses and solemnize ceremonies consistent with Alabama law and the U.S. Constitution; namely, between one man and one woman only, so help me God."

Several judges elsewhere announced variations of those plans after a push by Chief Justice Moore, who rose to national prominence in the early 2000s when he defied a federal judge's order to remove a Ten Commandments monument from a Montgomery building and was subsequently ousted from his post leading the high court. He staged a political comeback, became chief justice again in 2013, and has in recent weeks said that Alabama's probate judges are not bound by a federal trial court's decisions. His argument has deep resonance in a place where a governor, George Wallace, stood in a doorway of the University of Alabama in 1963 in an unsuccessful bid to block its federally ordered integration.

Although much has changed from Wallace's era, Chief Justice Moore had used a series of strongly worded letters and memorandums to insist that Judge Granade, an appointee of President George W. Bush who joined the federal bench in 2002, had instigated a grave breach of law.

The result had been a legal and cultural debate rife with overtones of history, closely held religious beliefs and a chronically bubbling mistrust of the federal government that was expected to play out at Alabama's courthouses Monday.

"I didn't start this," Chief Justice Moore said last week of the controversy. "This was a federal court case pushed on our state."

Judge Granade has signaled that she expects probate judges to carry out her decisions, and judges, before the chief justice's order, had often said they would.

"With all due respect to Chief Justice Moore, he's on the Alabama Supreme Court, and he's not a federal judge," said Alan L. King, a probate judge in Jefferson County, said last week.

The chief justice's misgivings speak to widespread concerns here about federal overreach and same-sex marriage in Alabama, where about 81 percent of voters in 2006 supported a constitutional amendment banning gay nuptials. Few here doubt the force of his belief that Judge Granade's orders hold only "persuasive authority," and not binding power, on Alabama judges.

"My guess is that is actually the way Roy Moore sincerely understands the federal-state relationship," said Joseph Smith, a judicial politics expert at the University of Alabama. "He's also an elected politician, and he knows who his constituency is."

So he has for now turned his words against Judge Granade.

"She can't order them to recognize the unconstitutionality of the Sanctity of Marriage Amendment by her views," the chief justice said in a telephone interview during which he quoted Alabama statutes verbatim and resisted comparisons to Wallace.

Despite Chief Justice Moore's protests, some analysts see parallels between his arguments now and those Wallace advanced in his own time.

"It's a very similar strain of ideology: the state's rights, resisting the national tide, resisting liberal movements in policy," Dr. Smith said.

Some legal scholars say that the chief justice may be correct in his interpretation of the immediate scope of the federal court's rulings and how they apply to the probate judges. But his eagerness in pronouncing his views unnerved some in Alabama who feared that it might stir local judges to resist Judge Granade.

"I don't want to see judges make the same mistakes that I think were made in this state 50 years ago, where you have state officials not abiding by federal orders," said Judge Steven L. Reed of Montgomery County, who added, "The legacy always hangs over us until we show that we're beyond it."

But there had been only limited talk of plans for sweeping defiance by probate judges, including those who say that same-sex marriages conflict with their religious views. In Geneva County, Judge Fred Hamic said Wednesday he would issue licenses to gay couples but that they would have to go somewhere else to wed. "I believe I would be partaking in a sin, and I sin every day, don't get me wrong," he said. "This is one sin I do not have to participate in, not that you have to participate in any sin."

For many here, it is unsurprising that Chief Justice Moore emerged as a strident voice in a social debate after the dispute about the Ten Commandments display, known as "Roy's Rock," forced him from power.

"Unfortunately, sometimes it makes for very good politics here to be seen as opposing federal intervention, whether it's from a court or a federal agency," said David G. Kennedy, who represents two women involved in a case that prompted Judge Granade's decision. "The situation here is that this is not federal intervention. It's not federal intervention at all. What it is, is a federal court declaring what same-sex couples' rights are under the federal Constitution."

Saturday, January 3, 2015

Prosecutorial misconduct has become an ugly commonplace of modern government, manipulating the legal system to attack easy political targets. So some good news: The courts may dismantle a California settlement that was a product of fraud by prosecutors.

The story began in 2007 with the Moonlight Fire in California that burned some 65,000 acres, about two-thirds on federal land. Within 48 hours and while the flames were still burning, the state's department of forestry and fire protection, known as Cal Fire, and the U.S. Forest Service blamed the disaster on Sierra Pacific, a Redding-based company that owns some 1.2 million acres of timberland.

In 2009 a federal-state task force brought official complaints against the company and nearby landowners. California officials filed an action in state court while prosecutors sued for $1 billion in federal court. Sierra Pacific has insisted it didn't start the fire but, faced with an open-ended legal fight, the company in 2012 settled the federal case for $55 million and a deed of some 22,500 acres to the U.S. government.

But the state case continued, and it has exposed a fiasco of fraud and corruption so significant that the company is seeking to have the federal settlement overturned. Among other problems, government investigators and prosecutors doctored reports, misrepresented facts and retaliated against employees whose questions threatened their strategy.

According to the theory implicating the company, the fire started when the blade of a Sierra Pacific bulldozer hit a rock and created a spark. Government investigators pinpointed a location and claimed they had confirmation from a bulldozer driver. Problem was, both the fire's alleged point of origin and the scenario to buttress it were fraudulent. When the company questioned the bulldozer driver, he denied having made the statement and admitted he couldn't have confirmed the statement prosecutors had him sign because he didn't know how to read.

Prosecutors were also dishonest about where the fire started. Overhead videos have shown that the point of origin marked by the government was well outside the visual boundaries of the burning forest nearly an hour after the fire started.

Leading the federal fire investigation was then-head of the Eastern District of California's Affirmative Fire Litigation Team, Robert Wright. A specialist in fire litigation, Mr, Wright says in a 15-page declaration in federal court that prosecutors withheld material information in the case, including a change in the fire's stated point of origin.

Mr. Wright says he also discovered an error in calculating the damage of part of a separate wildfire, which reduced the potential liability to $15 million from $25 million. Mr. Wright felt he was under a professional obligation to disclose the document, and he confirmed this with the Justice Department's Professional Responsibility Advisory Office. But he says his boss, Civil Chief David Shelledy, pushed back, saying, "That's a beginning. Now what can you do to avoid creating an ethical obligation to volunteer a harmful document."

When Mr. Wright disclosed it anyway, he says he was kicked off the Moonlight Fire case by Mr. Shelledy, days after he received a commendation for his performance on another case by U.S. Attorney Benjamin Wagner. Mr. Shelledy declined to comment, but Mr. Wagner told us that "we very strongly disagree with the assertions" made by Mr. Wright, "particularly insofar as they allege misconduct by individual AUSAs and retaliation by our office against a former employee."

Mr. Wagner adds that Mr. Shelledy was "recently awarded the Attorney General's Award for Distinguished Service from Attorney General Holder. "

A second federal prosecutor, Eric Overby, joined the case in 2011, only to withdraw promptly on discovering what he called prosecutorial abuse directed squarely at raising revenue. He told defense counsel that in "my entire career, I have never seen anything like this. Never."

In February 2014, California state Judge Leslie Nichols assailed the federal and state government for abuses of discovery so "reprehensible" and "egregious" that they "threatened the integrity of the judicial process." He threw out the case and awarded Sierra Pacific $30 million in sanctions against Cal Fire.

If that seems like a large number, the judge noted, the prosecutors were out to "win at any cost." Defendants had to uncover layers of governmental corruption, Judge Nichols continued. "The cost of Plaintiff Cal Fire's conduct is too much for the administration of justice to bear."

The case is growing in infamy. In October, Sierra Pacific filed a motion before federal judge Kimberly Mueller under rule 60(d) to vacate the settlement on grounds that it had been reached as the result of fraud on the court. The case was then removed from Judge Mueller and reassigned to a new judge, William Shubb, who will hear the next phase of the case.

That move acknowledges a legal fraud that could burn down the courthouse, not to mention the reputation of the government's fire investigators and the federal prosecutors pursuing a payday. Judge Shubb has an obligation to sanction these legal abuses with enough force that prosecutors across the country get the message.

Long waits at the local DMV office and a protest outside the district headquarters of a powerful state senator were two of the immediate outcomes of a new law that went into effect Friday allowing undocumented immigrants to obtain California driver's licenses.

Pro-immigration figures in the Legislature had attempted to get a law like A.B. 60 on the books for more than a decade. Reactions to the law going into effect, however, showed the policy of granting licenses to undocumented immigrants is still controversial.

Whereas state Sen. Ricardo Lara, D-Long Beach, hailed the law as a move to enhance fairness and traffic safety, the roughly two dozen protestors outside his office denounced California's policy as a criminal violation of federal immigration law.

Fierro was one of several people who stood in a line extending out the door of the Long Beach DMV office on Friday afternoon as agency staffers processed new driver's license requests and other work. Earlier Friday morning, a DMV employee warned people waiting in line that the challenges of processing applications with the new law in effect was a key reason that they could expect to stand in line for three hours.

DMV spokesman Jaime Garza said the Legislature has appropriated $141 million to the agency to pay for the implementation of A.B. 60. The department has hired 900 new employees and expects to process 1.4 million additional license applications over the coming three years.

Garza said the new law is intended to increase traffic safety by requiring undocumented drivers to be tested for their driving ability and knowledge of traffic law. Lara, a co-author of the bill and current chair of the state Senate's Appropriations Committee, expressed a similar opinion.

"Today, California is taking a historic step forward in protecting our streets by making sure all drivers are licensed, tested and insured. Families can take their kids to school, drive to work and become more active in their communities as a result of AB60. It's a proud day for the Golden State," he said in an emailed statement.

That's contrary to the views protestors expressed outside Lara's office. Among those who spoke at a rally organized by a Claremont-based anti-illegal immigration group called We the People Rising was Dan Rosenberg of Woodland Hills.

Rosenberg said his son Drew Rosenberg was killed in 2010 in a car collision involving an undocumented driver and that he has decided based on his own research of traffic safety data that giving licenses to undocumented immigrants will not improve traffic safety.

"Breaking the law is not an excuse to break other laws," he said after delivering his remarks.